The treaty sets out methods for selecting members of the Commission and judges of the Court that assure no nation or political orientation is likely to dominate either.

While the Commission and the Court take complaints against member states from any person or non-governmental organizations (defined to include indigenous organizations), those complaints may only be taken against nations that have consented to recognize the jurisdiction of the Commission or the Court.

It’s in this matter of consent that Canada and the U.S. part company with most of the other governments in the Western Hemisphere. United States President Jimmy Carter signed the American Convention on Human Rights in 1977 but it has never been ratified. Canada has not signed.

Some politicians object that protecting the human rights of persons across national borders is “meddling in the internal affairs” of other nations.  Others claim that the northern nations are more advanced than the nations from Mexico south in the protection of human rights and so there is no need for an external mechanism.

Most indigenous citizens of the U.S. and Canada would probably disagree with both of those assertions, and so would the many Latin American countries that have suffered under U.S.-backed dictatorships.

Guatemala was ruled by a series of military dictators from 1930, starting with Jorge Ubico, who expropriated indigenous lands for the benefit of United Fruit Company. The Indians, mostly Mayans, wound up toiling under abysmal conditions on land they used to own.

Ubico was overthrown by coup d’état in 1944, leading to the first free election in Guatemala and the “revolutionary” governments of first Juan José Arévalo and then Jacobo Árbenz. While neither Arévalo nor Árbenz were Marxists, there was no way to reform that did not involve ameliorating the working conditions on the banana plantations and, eventually, returning land to the Mayas. The CIA responded to United Fruit Company’s cries of outrage by engineering the overthrow of Árbenz in 1954, beginning another series of military dictatorships that suppressed the Indians ruthlessly.

Civil War raged in Guatemala from 1960 to 1996, when there were elections. That’s why the massacres of Indians and destruction of their property took up a great deal of the Inter-American Court’s early business, and the Court’s methods of dealing with human rights violations past and ordering creative remedies clearly spooked the U.S. and Canada.

There’s another problem for the nations of North America getting worse over time. Early decisions of the Inter-American Court will be cited as precedent for subsequent cases and that court is already, particularly from the standpoint of U.S. law, “off the reservation.”

Consider:

— The Court has held that Indigenous Peoples do not lose their tribal status by intermarrying in a case that involved intermarriage with African slaves.

— The Court has recognized aboriginal titles to land, in direct conflict with a U.S. Supreme Court holding that denied aboriginal title to Alaska Natives.

— The Court has held that the right to property includes a right to “informed participation and consent” to mineral extraction even when the Indians do not own the underlying minerals, in direct conflict with a U.S. Supreme Court decision that allowed the U.S. government to fleece the Navajo Nation when the Navajos did own the minerals.

— The Court has held that the right to life includes a right to vida digna, which the Court translates “a decent life,” opening up the U.S. government to lawsuits over the living conditions on reservations.

— Scariest of all for the U.S. and Canada, the Court has found that injuries to indigenous persons are injuries to indigenous communities and therefore the communities must be compensated.

The Inter-American Commission on Human Rights has taken the position that it has authority to issue reports on human rights violations in OAS member states even when they have not signed the American Convention on Human Rights. This puts the government of the colonial state in the position that, if it complains, it merely calls more attention to any negative findings. The latest “victim” of this process is Canada.

On December 21, 2014, the Commission published Missing and Murdered Indigenous Women in British Columbia, Canada. Comparing the Commission’s findings to a judgment the Inter-American Court rendered against Mexico in 2010, it’s probable that if Canada had submitted to the Court’s jurisdiction it would have been ordered to spend a lot of money on some First Nations’ reserves. The harm in the Mexican cases was rape, followed by violations of Article 25 of the treaty, dealing with the right to judicial protection. Damages ordered to the affected communities were more substantial than the damages awarded to the immediate victims.

As to the United States, the Commission has done what it can do to expose one of the most egregious abuses in this hemisphere only to be stonewalled by the country that holds itself up as exceptional in the matter of human rights:

The Commission…sought permission during 2007 to carry out an on-site visit to Guantanamo Bay, Cuba, to monitor conditions of detention there for the hundreds of nationals of various countries who have been held there for extended periods. While representatives of the U.S. Government did indicate that the Commission could visit the base at Guantanamo, they informed the Commission that it would not be permitted to freely interview detainees. The Commission declined to conduct a visit under such limitations.

A subsequent request in 2011 got the same result. The Human Rights Commission’s made attempts to investigate Guantanamo is too numerous to recount here, but the point for this discussion is that the United States and Canada are not the avatars of human rights they claim to be if they cannot consent to human rights remedies administered from outside their borders. The prison at Guantanamo is a clinic in violations of Article 7 of the American Convention on Human Rights, dealing with the right of personal liberty.

While the U.S. was stonewalling investigation into Guantanamo, the Commission was able to assemble the 2014 report on the disappearance of indigenous women in Canada. Another 2014 report could use some attention north of the Rio Bravo: The Right to Truth in the Americas. At this time, the San Carlos Apaches could use a dose of truth as fair and transparent procedure.

At this writing, the following countries have cases in the merits phase before the Inter-American Court on Human Rights, and most of these cases involve Indigenous Peoples: Brazil, Bolivia, Chile, Colombia (3), Costa Rica, Ecuador (5), El Salvador, Guatemala (4), Honduras (3), Peru (9), Suriname and Venezuela. Canada and the United States do not stand outside the jurisdiction of the Inter-American Court on Human Rights because they are better than these countries.

The Apache citizens who are risking arrest at Oak Flat right now are operating outside the colonial legal system for the same reason Dr. Martin Luther King Jr. had to operate outside the colonial legal system. That system has failed its duty to protect fundamental human rights even as both the U.S. and Canada avoid the Inter-American Court out of an exaggerated sense of their own righteousness that would be unlikely to survive neutral and objective scrutiny. This is why they avoid that scrutiny.

RELATED: Why the US and Canada Fear a Human Rights Court, Pt. I: The Global Expansion of International Law